Raimondo and Dann-Messier Are Wrong on Title IX

Photo credit: Providence Journal

While Rhode Islanders engage in a fight over abortion laws and bid adieu to Lincoln Chaffee as he heads off to Wyoming, the final day of the public comment period on Betsy Devos’ decision to rescind Obama era guidance on Title IX has come and gone. The most controversial piece of the guidance is how it defines sexual assault and how it advises colleges and universities to adjudicate accusations of sexual assault that occur on their campuses.

Governor Gina Raimondo and postsecondary education commissioner Brenda Dann-Messier condemned the proposed changes to Title IX publicly on the last day of public comment. In a joint letter, they wrote that “the students of Rhode Island have been served well by existing Title IX guidance, and we oppose the proposed changes.” And that may be true.

But there have been serious unintended consequences to the Title IX actions taken by the Obama administration in 2011. Under their recommendations or “guidance”, men accused of sexual assault lost their right to know the charges against them and to see the evidence being used against them. Neither they nor their attorneys (or advisors) could cross examine the accuser and the case would be decided by a single Title IX investigator.

The result? More than 120 cases that have been overturned in court—and in almost every case, the judges have cited that the accused was denied his right to due process.

The presumption of innocence shifted to a presumption of guilt and Governor Raimondo and Dann-Messier appear to be just fine with that. Despite the preferred narrative that campus rapists are white, wealthy athletes in fraternities, the reality of who’s being adjudicated — and expelled — on college campuses looks very different. Black male students are being disproportionately accused, suspended, and expelled based on nothing more than an accusation.

Shall we reflect on how many of the brutal lynchings of Black men during Jim Crow were the result of nothing more than a claim made by a White woman?

Almost no one wants to talk about the role race plays in allegations of sexual assault but those brave enough to address it are unequivocal about the imbalance they see. While the Office of Civil Rights quite remarkably does not collect any data on race in these kinds of Title IX cases, the anecdotes are consistent and many.

Emily Yoffe, who has written extensively on the issue, shares that while Black men make up only about 6 percent of college undergraduates, they are vastly overrepresented in the cases she has tracked. Self-described feminist and Harvard Law Professor Jeannie Suk Gersen wrote in The New Yorker in 2015 that the administrators and faculty members she’d spoken with who “routinely work on sexual-misconduct cases” said that “most of the complaints they see are against minorities.” And Janet Halley, also a self-described feminist and professor at Harvard Law School said in testimony before Congress that in her experience, “the rate of complaints and sanctions against male (including transitioning to male) students of color is unreasonably high.”

And Raimondo and Dann-Messier have their facts wrong too. They claim in their joint letter that one of the proposed changes is a “requirement that colleges and universities hold live hearings where cross-examination would occur, and potentially allowing for a perpetrator to question a victim, inducing further trauma on the victim or creating a hostile situation.” This is patently false. The new guidelines clearly state that the accused is prohibited from cross-examining the accuser himself; that will be left to attorneys and advisers. Additionally, the proposed rules grant both parties “equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint.”

Even liberal and feminist icon Ruth Bader Ginsberg has spoken out about the lack of due process on college campuses. When asked about the issue in early 2018, she said “the person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenants of our system, as you know, everyone deserves a fair hearing.

When pressed directly on whether or not some of those criticisms of college codes were valid, her simple response was, “yes.”

It is common for elected officials to simply parrot the talking points given to them by others in their party or interest groups who have their ear. I suspect that neither Governor Raimondo or Commissioner Dann-Messier are even familiar with the outsized harm that has been done to Black men on college campuses since the Obama policies took effect.

At least now they know.

To read more of my writings on this topic, click here for a piece in The Hill and here for a piece in Real Clear Education.